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We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

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Argument recap: Riley v. Kennedy

Posted Fri, March 28th, 2008 2:29 pm by Andrew Hamm

Though this appeal presented two questions to the Court, the first concerning the timeliness of the Governor's appeal, the justices seemed interested only in the second question: Whether voting-related changes brought about by State court orders are covered by § 5.

Arguing for appellant, Kevin Newsom began his affirmative case by relying on Young, despite the scant attention this case received in his brief, arguing that the Court's decision in Young precluded application of the § 5 requirements because Act 85-237 was never "in force or effect." Like the provisional voter registration plan in Young, the special election of 1987 "resulted only from a temporary misapplication of State law and it was immediately corrected upon acknowledgement that it was unlawful in fact." Had the State trial court correctly interpreted State law, there never would have been an election.

Newsome then confronted several hypothetical situations posed by the justices. First was Justice Kennedy, asking how exactly a trial court takes the need for preclearance into consideration. Newsome clarified that State courts would not issue provisional judgments to be cleared by the federal government; rather the preclearance must come before the changes are implemented by administrative action. In response to a question by Justice Scalia on the types of district cases requiring preclearance, Newsom answered that they do not contend "that a State court ordering redistricting, . . . exercising what is functionally . . . a legislative power" requires preclearance. The point, Newsom contended, is that redistricting cases are qualitatively different from the current case and should be treated differently.

Justice Souter asked whether there had been other State court cases invalidating a State election law that had been subject to preclearance. Though Newsom answered in the negative, Justice Souter was unimpressed: That "answer does not prove much . . . as long as the preclearance review had not preceded the State constitutionality judgment . . . there would be no law" subject to preclearance. Responding next to both Justices Kennedy and Scalia, Newsom argued that even though Act 85-237 had "technically" been in place, according to the Court's holding in Danforth, the State supreme court had not changed the law by holding that statute unconstitutional"”it had merely declared what the law had always been.

Justices Ginsburg, Souter, and Kennedy next hypothesized situations in which preclearance would not be sought because a State court would immediately declare the law unconstitutional. Justice Kennedy pointed out that a Federal court might expressly wait until a statute has received preclearance before ruling on it; in contrast, Justice Scalia posited that the Attorney General might take the opposite track, refusing preclearance until the State courts have reviewed a law. To Justice Scalia, granting preclearance for something in the midst of ongoing litigation (something that Newsom said he was not aware of happening elsewhere) would be "an exercise in futility." Newsom also reaffirmed that in the instant case, a challenge was brought in State court as soon as possible, when the first vacancy under the new law occurred.

Justice Breyer then pointed out that when Sam Jones was appointed to the Mobile County Commission, that appointment was presumably not made expressly retroactive"”further indication that the election had a real, practical effect. In contrast to the current case, "the net practical effect of the [registration plan] in Young v. Fordice, was null, zero, zilch." Newsom responded that even if the Court disregarded his interpretation of Young, the Court should still carve out an exception for State court exercises of judicial review. Any abuse of that power could be challenged under the Fourteenth and Fifteenth Amendments and § 2 of the Voting Rights Act. Justice Breyer pressed further, asking if appellant had any evidence indicating that it had ever mattered for § 5 purposes whether "the cause of a change in a State plan was a decision of . . . five members of a court . . . or whether it was a legislative decision." In response, Newsom contended that given the federalism costs of appellees' position, they should bear the burden, under Bossier Parish II and Georgia v. Ashcroft, of showing "that Congress clearly intended to include" State court decisions within § 5's reach. In response to Justice Alito's question as to why the history of discriminatory practices of Alabama state courts does not provide a basis for appellees' position, Newsom replied in two parts. First, appellees had failed to show any congressional intent to include State court orders. Second, state courts "exercising judicial review are institutionally incapable of changing the law specifically in the way the Congress was concerned about when it enacted § 5."

Chief Justice Roberts then pressed appellant on why he had not relied more on language in § 5 that technically limits its scope to those changes which deviate from the practice in force or effect as of November 1, 1964. Though Newsom initially suggested that dicta in Presley and Young would be inapposite because a different baseline might apply to legislative and executive changes as compared to judicial orders, he eventually agreed with the Chief Justice that there should only be one baseline. In finishing up his answer to the Chief Justice, Newsom also emphasized what he described as the "savings clause" of § 5, which expressly subjects precleared statutes to suit. This provision shows at least partially "that Congress was thinking about court decisions enjoining existing baselines differently from the way it was thinking about the typical legislative and administrative changes" subject to § 5.

In conclusion, Newsom responded to Justice Ginsburg's question about what the Governor's actions would be if he won by answering that it would be the Governor's option to either confirm the election of Merceria Ludgood or reinstate Juan Chastang.

Arguing for appellees, Pamela Karlan opened argument by pointing out that the Court's language in Young, borrowing from Perkins and City of Lockhart, established "the general rule . . . that when a law is in force or effect its constitutionality under State law doesn't matter." In response to a question by Justice Scalia, Karlan responded that it was unclear if Act 85-237 had been challenged as quickly as possible and that two 2008 Alabama cases, Roper v. Rhodes and Wood v. Booth, held that if a prospective election is not challenged in a timely fashion, the fact that the elected person is not entitled to the office does not, on its own, permit a subsequent challenge.

Justice Ginsburg then challenged Karlan that appellees' position "locked [Alabama] into a mistake that was made about Alabama law by [a] circuit court." Karlan disagreed, pointing out that it was not just a circuit court's mistake; the law actually went into effect. Karlan then answered a few questions on whether, under Alabama law, Act 85-237 had actually been in effect. According to appellant's trial brief, the Alabama supreme court did not declare the law void ab initio and, furthermore, Alabama law is not entirely clear on when a statute goes into effect. Responding to Justice Kennedy's question as to the result if the Alabama supreme court had clearly held Act 85-237 void ab initio, Karlan asserted that Perkins and City of Lockhart still hold that as a matter of Federal law the statute would have been "in effect."

Justice Alito then pressed Karlan on whether state laws that flagrantly violate state constitutions would be "locked in." Upon answering in the affirmative, Karlan was confronted by several questions from Justice Scalia as to whether § 5 operated to make an otherwise unconstitutional law somehow constitutional under the State constitution. Though disagreeing with the terminology used by Justice Scalia, Karlan characterized § 5 as a "clear, bright-line rule": States cannot change election practices or laws without obtaining preclearance. Justice Souter proposed that the unconstitutional law did not become a baseline, but rather the State existed in a stalemate with § 5, and had to come up with some solution that would receive preclearance.

Karlan and Justice Kennedy then exchanged hypotheticals concerning jurisdictions who mistakenly adopt illegal or unconstitutional practices, and Karlan affirmed that preclearance would be required. Karlan also pointed out that this is not necessarily a case about judicial review. Given that the State legislature intended Act 2004-215 to cure the constitutional defects of Act 85-237, this was not just an exercise of judicial review by a State supreme court, but rather a straightforward case of statutory interpretation: whether Act 2004-215 was retroactive or proactive. (Karlan acknowledged that her characterization, based upon, inter alia, her clients' opinions, was at odds with the Alabama supreme court's decision).

After Justice Ginsburg pointed out that at bottom this case was about "a review of a lower court by a higher court," Karlan responded that Hathorn and Branch, both likewise involving review of lower courts by higher courts, require ruling for the appellees in this case.

At this point the Chief Justice returned to the same line of questioning that he had entered upon with Newsom: "Why did Alabama have to preclear anything . . . [Since this was] not a change from what was . . . "in force or effect' on November 1st, 1964[?]" The Chief Justice pointedly rejected Karlan's reliance on the Court's prior holdings, terming them dicta. Karlan then turned to the argument that the Governor was not in fact trying to return to the practice of November 1, 1964, since following the 1977 Federal district court case Brown v. Moore, Mobile County switched from at-large to districted elections. According to Karlan, the appellant "want[s] to go back to the 1977 to 1985 practice." The Chief Justice agreed with appellees on their characterization of the DOJ regulations and the House report, but asked how this "squar[ed] with the statutory language." In response, and in concluding her argument, Karlan pointed out how the Court has recognized other features of § 5 that are not strictly provided for in the text. For example, Allen provided for private rights of action. Though Congress has not changed the text of § 5, it has implicitly adopted these and the other Court decisions through subsequent reauthorizations.

Arguing on behalf of the United States, Assistant to the Solicitor General Kannon Shanmugam faced a question by Justice Scalia as to whether counsel had "any problem with the republican form of government provision in the Constitution." Counsel replied "Absolutely not." Shanmugam disagreed with Justice Scalia that § 5 was imposing upon the voters of Alabama something they had never chosen, characterizing the current case as one in which the people of Alabama had adopted a law that did go into effect, even if it were later held to be invalid.

Shanmugam agreed with Justice Ginsburg that the only reason that this change required preclearance is because an Alabama circuit court incorrectly interpreted State law, and thus an election was actually held, regardless of its invalidity. Shanmugam also conceded to the Chief Justice and Justice Kennedy that if, hypothetically speaking, a State court decided to postpone deciding a case until after an election was held, and if that election were precleared and held, then any contrary holding by a later court would require preclearance.

Justice Breyer then asked what "harm does it do to the enforcement of the civil rights laws of the United States if the holding of this Court were where [an election law or plan] was challenged immediately . . . it never took force or effect?" Shanmugam answered that first, under the governing precedent of Young, the special election mandated under Act 85-237 was "in force or effect," and second, that City of Lockhart and Perkins establish that the validity of the practice under state law is immaterial if the practice was actually "in force or effect."

The Chief Justice followed up by asking if Shanmugam had "anything to add to [appellee's] response to my quaint fixation on the language of the statute?" While conceding that a formal textual argument could be made that § 5 allows reversion to the practice in effect on November 1, 1964, Shanmugam countered that the question was not properly before the Court. In addition, this interpretation runs counter to the decisions of the lower courts, as well as to the DOJ's regulations, which the Court has held are due substantial deference.

At the opening of appellant's rebuttal time, Justice Stevens posed the question of whether the language emphasized by the Chief Justice gave a covered jurisdiction a "safe harbor" for adopting voting changes. Newsom replied that, under the Court's dicta, it would not do so for legislative and executive changes, but proposed that the instant case was of a different kind and might therefore fall under a different rule. Newsom also disagreed with appellees that the change from at-large to districted elections in 1977 meant that the Governor was trying to return Alabama to a 1977 practice, not a 1964 practice.

Newsom also characterized and emphasized the Federal district court's decision below as requiring preclearance of Stokes and Riley themselves, not just their implementation. This, Newsom claimed, is an "extraordinary change of the traditional course of relations between the states and Federal Government." Though authorized by § 5, the legislative history of that section deals with legislative and executive actions. The instant case deals with neither and this "extraordinary departure" should not be expanded to include State court's exercise of judicial review.

In conclusion, Justice Souter pressed Appellant on "[w]hy as a matter of federalism is it more extraordinary to review a court determination than the determination of a popularly elected legislature?" Appellant responded with two points. First, such a rule would cover a lot more changes. Second, there is also a qualitative difference, considering that state courts, as federal courts, do not change law but determine what it is.

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On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]